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If an IIT's applicability is restricted to disputes that have arisen before its entry into force, it does not matter whether the subject-matter of the claim concerns conduct before the IIT's entry into force

An umbrella clause does not elevate pure contractual claims into treaty claims; in case a contract contains an exclusive forum selection clause referring to domestic courts, an IIT based tribunal has no jurisdiction over these contractual claims

If an IIT deems international law applicable, it covers breaches of any rule of international law, e.g. the customary standard of denial of justice; in elucidating such a standard, a tribunal may seek guidance in international treaties signed by the host state

International Investment Treaties (IITs) > International Law Rules Applicable to IITs > Relationship of IITs to Other Sources of International Law > Relationship of an IIT to Other Treaties > General Remarks

International Investment Treaties (IITs) > International Law Rules Applicable to IITs > Relationship of IITs to Other Sources of International Law > Further Problems

Overcharged dockets are an explanation, but not an excuse for judicial delays

The fact that an investor was aware of the length of procedures before domestic courts when concluding a contract is not relevant when assessing whether a judicial delay constitutes a denial of justice

A tribunal has jurisdiction over a dispute under the ICSID Convention even if the Convention was not applicable at the time the IIT entered into force, provided that the ICSID Convention was applicable at the time the investor accepted the state's offer to arbitrate

Whether a judicial delay constitutes a denial of justice has to be evaluated on the circumstances and the context of the case; the complexity of the matter, the need for celerity of the decision and the diligence of the claimant are relevant factors

The underlying concept of investment in the ICSID Convention implies an economical operation initiated and conducted by an entrepreneur using its own financial means and at its own financial risk, with the objective of making a profit within a given period of time

Exhaustion of local remedies (i.e. judicial finality) is a required substantive element of a claim for denial of justice; it is different from the traditional rule of exhaustion of local remedies, which is a procedural prerequisite

International Investment Treaties (IITs) > Protection of Investors under IITs > Waiver of Rights Under an IIT

International Investment Treaties (IITs)

International Law Rules Applicable to IITs

Relationship of IITs to Other Sources of International Law

Relationship of an IIT to Other Treaties

General Remarks

If an IIT deems international law applicable, it covers breaches of any rule of international law, e.g. the customary standard of denial of justice; in elucidating such a standard, a tribunal may seek guidance in international treaties signed by the host state

Further Problems

If an IIT deems international law applicable, it covers breaches of any rule of international law, e.g. the customary standard of denial of justice; in elucidating such a standard, a tribunal may seek guidance in international treaties signed by the host state

Law of State Responsibility

Attribution of Acts

General Remarks

Conduct of state organs and of entities exercising governmental authority is attributable to the host state if the requirements of the ILC Draft Articles on State Responsibility are met

Protection of Investors under IITs

Applicability of IITs

Ratione Temporis – Application in Time

If an IIT's applicability is restricted to disputes that have arisen before its entry into force, it does not matter whether the subject-matter of the claim concerns conduct before the IIT's entry into force

Indirect expropriation requires a radical deprivation and a taking of property; a mere breach of contract is not sufficient

Fair and Equitable Treatment

Character and Scope

The disruption of negotiations and the refusal to resume them does not necessarily amount to a breach of the FET standard

Case Groups

Denial of Justice

Overcharged dockets are an explanation, but not an excuse for judicial delays

The fact that an investor was aware of the length of procedures before domestic courts when concluding a contract is not relevant when assessing whether a judicial delay constitutes a denial of justice

Whether a judicial delay constitutes a denial of justice has to be evaluated on the circumstances and the context of the case; the complexity of the matter, the need for celerity of the decision and the diligence of the claimant are relevant factors

Exhaustion of local remedies (i.e. judicial finality) is a required substantive element of a claim for denial of justice; it is different from the traditional rule of exhaustion of local remedies, which is a procedural prerequisite

Umbrella Clause

General Remarks

An umbrella clause does not elevate pure contractual claims into treaty claims; in case a contract contains an exclusive forum selection clause referring to domestic courts, an IIT based tribunal has no jurisdiction over these contractual claims

Dispute Settlement Clauses

Fork in the Road Clauses

A fork-in-the-road-clause requires identity of object, parties and cause of action; contractual claims do not have the same cause of action as IIT claims

An exclusive jurisdiction clause in a contract cannot prevent an IIT based tribunal from examining the violations of the IIT

Waiver of Rights Under an IIT

An exclusive jurisdiction clause in a contract cannot prevent an IIT based tribunal from examining the violations of the IIT

Further Problems

An obligation to create and maintain favourable economic and legal conditions does not prohibit changes in legislation

Contract and Treaty Claims

Distinction of Contract and Treaty Claims

Distinction between violation of a contract and a treaty

ICSID Convention

Jurisdiction of the Centre (Articles 25-27)

Article 25

Consent

Consent Based on an IIT

A tribunal has jurisdiction over a dispute under the ICSID Convention even if the Convention was not applicable at the time the IIT entered into force, provided that the ICSID Convention was applicable at the time the investor accepted the state's offer to arbitrate

Jurisdiction Ratione Materiae

Investment

The Parties’ Consent and “Investment” / Two-Part Test of Investment

Whether there is an investment is subject to a two-part test in treaty-based ICSID proceedings

Contracts as Investments

A construction contract in which the execution of the works extends over a substantial period of time involves by definition an element of risk as required by the Salini criteria

"Salini" Criteria

A construction contract in which the execution of the works extends over a substantial period of time involves by definition an element of risk as required by the Salini criteria

The underlying concept of investment in the ICSID Convention implies an economical operation initiated and conducted by an entrepreneur using its own financial means and at its own financial risk, with the objective of making a profit within a given period of time

Jurisdiction Ratione Temporis

A tribunal has jurisdiction over a dispute under the ICSID Convention even if the Convention was not applicable at the time the IIT entered into force, provided that the ICSID Convention was applicable at the time the investor accepted the state's offer to arbitrate

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